IN THE LABOUR APPEAL COURT OF SOUTH AFRICA

HELD AT JOHANNESBURG

CASE NO: CA 09/08 In the matter between:

Riaan Booysen Appellant

and

The Minister of Safety and Security 1st Respondent

The National Commissioner of the South 2nd Respondent

African Police Services

The Provincial Commissioner of the South 3rd Respondent

African Police Services

South African Police Services 4th Respondent

Assistant Commissioner Y Badi N.O 5th Respondent

Coram: Waglay DJP; Tlaletsi JA et Musi AJA.

Judgment

Tlaletsi JA

Introduction

[1] This is an appeal against a judgment of the Labour Court (Cheadle AJ)

dismissing the appellant’s application with costs.[1] The relief sought by the

appellant in the said application that was brought on urgent motion was,

inter alia, an order postponing a disciplinary hearing that was scheduled to

continue before fifth respondent on 13 February 2007 pending the outcome

of an application to review and set aside fifth respondent’s decision that the

appellant was fit to participate in the hearing. The appeal is with the leave

[1] The judgment of Cheadle AJ has been reported in (2009) 30 ILJ 301 (LC) and [2008] 10 BLLR 928 (LC).

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of the Labour Court. For a better understanding of the issues a brief history

and chronology of events is necessary. The facts are from the founding and

replying affidavits disposed to by E W Booth (the appellant’s attorney), the

answering affidavit disposed to by the fifth respondent on behalf of the

respondents, annexures as well as other relevant documents filed as part of

the record of the appeal.

Factual background

[2] The appellant was at all material times employed by the fourth respondent,

the South African Police Services (“SAPS”), as a police officer holding the

rank of Director under the command of the Western Cape Provincial

Commissioner. On 11 July 2007 the appellant, after an investigation by a

senior investigating officer, was charged with fraud, corruption and perjury.

These charges related more specifically to:

2.1 fraud in respect of informer claims in the amounts of R20 000.00 and

R 15 000.00 respectively;

2.2 failure to comply with National Instruction 2/2001 in respect of the

Registration and Finances of Informers;

2.3 wilful or negligent mismanagement of State finances;

2.4 prejudicing the administration, discipline or efficiency of a state

department, office or institution;

2.5 failure to carry out a lawful order or routine instruction without just

or reasonable cause;

2.6 giving a false statement of evidence in the execution of his duties;

and;

2.7 committing any common law or statutory offence, namely fraud.

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[3] Given the alleged seriousness of the nature of appellant’s alleged

misconduct, the Provincial Commissioner (the third respondent), decided to

suspend him in terms of Regulation 13(2) of the South African Police

Services Disciplinary Regulations on the basis that in the opinion of the

Provincial Commissioner, inter alia:

3.1 the charges related to misconduct described, inter alia, in

annexure “A” to the Regulations, including alleged fraud, corruption

and perjury;

3.2 the potential impact on the work of SAPS which is very serious, and

which is highly likely to undermine any confidence his colleagues and

members of the public may have in the police services;

3.3 the appellant holds a very responsible position, and had already

demonstrated the ability to use his senior position to obtain

information from his junior colleagues, even though he had been on

sick leave since 16 February 2007, and his request to secure certain

police dockets did not follow procedure; and

3.4 the circumstances in which the alleged misconduct took place were

highly suspicious and appear to amount to a serious breach of police

policy and procedures.

3.5 Based on the information and evidence placed before the Provincial

Commissioner, he held the view that the case against the appellant

appeared to be so strong that it was likely that he would be convicted

of fraud, corruption, perjury and be dismissed.

[4] In determining whether an employee should be suspended without pay,

Regulation 13(2) provides that the Provincial Commissioner may suspend

the employee without pay:

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4.1 if he is satisfied on reasonable grounds that the employee has

committed misconduct listed in annexure “A”, and

4.2 if the case against the employee is so strong that it is likely that the

employee will be convicted of a crime, and be dismissed.

The appellant was informed of the Provincial Commissioner’s decision to

suspend him without pay in a letter dated 31 August 2007 which was

served on him on 4 September 2007.

[5] The Safety and Security Bargaining Regulations that are applicable are the

product of a collective agreement concluded in the SSSBC[2] on 20 May

2005.

[6] The appellant was charged on 11 July 2007 and was informed, on the same

date, to appear at a disciplinary hearing scheduled for 3 August 2007. Due

to his legal representative being abroad on vacation on 3 August 2007, the

hearing was rescheduled by agreement to convene on 31 October 2007.

[7] On 17 September 2007, the appellant launched an urgent application in the

Labour Court under Case No. C489/07 (“the first Court application”) to inter

alia:

7.1 compel the employer to pay his salary and other remuneration

benefits pending the decision of a referral to the SSSBC;

7.2 alternatively, pending the decision of the Court; and

7.3 suspend the Provincial Commissioner’s decision to suspend him from

the SAPS without pay, pending the decision of the SSSBC;

alternatively pending the decision of the Court.

[2] Safety and Security Sectoral Bargaining Council. The SSSBC has amalgamated the previous departmental

bargaining council and the National Negotiating Forum in the South African Police Services.

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[8] On 17 September 2007 the parties reached an agreement to postpone the

first court application to 22 November 2007. The employer agreed to pay

the appellant’s full salary benefits, without admission of liability, until the

end of November 2007, subject to the early determination of the

application.

[9] On 9 October 2007, the appellant referred an unfair labour practice dispute

to the SSSBC to set aside the employer’s decision to suspend him in terms

of Regulation 13(2) on 4 September 2007.

[10] At the commencement of the disciplinary hearing, on the morning of 31

October 2007, the appellant’s legal representatives informed the

Chairperson of the hearing, Mrs Yvonne Badi, the fifth respondent (“the

chairperson”), that the appellant was diagnosed with post-traumatic stress

disorder (“PTSD”) with an associated major depressive disorder. On behalf

of the employer, however, the medical reports of Drs. Loebenstein and

Teggin were handed in. Both doctors had examined the appellant and were

of the view that he was only able to attend his disciplinary hearing, in a

controlled environment.

[11] The fifth respondent noted the request, and continued with the hearing.

However, on the third day, 2 November 2007, during the cross examination

of one of the witnesses[3] the appellant’s legal representative requested an

adjournment of the enquiry on the basis that their client was not feeling

well. The appellant had at that stage suffered a “flashback/ severe panic

attack”. The hearing was postponed to 3 and 4 December 2007.

[12] On 22 November 2007, the first court application was again, by agreement,

postponed to 21 January 2008 and the employer agreed to continue paying

the appellant his monthly remuneration and other benefits until the end of

[3] The witness who is a practising advocate at the Cape Bar was allegedly paid by the

appellant as an Informer but who testified that he was not.

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January 2008, subject to the early determination of the application or the

conclusion of the disciplinary hearing, whichever date was the earlier. It

was part of the agreement that the presiding officer, would decide on the

fitness of the appellant to continue with the hearing should the appellant

contend that his medical condition prevented him from participating in the

hearing. The order by agreement was made by Cele AJ.

[13] At the disciplinary hearing on 3 December 2007, appellant’s legal

representative filed an affidavit motivating this time, for the indefinite

postponement of the disciplinary hearing, alternatively to a date in 2008,

due to appellant’s mental and medical condition. On the strength of the

affidavit, the hearing was postponed by the chairperson to 8 January 2008.

[14] When the disciplinary hearing was reconvened on 8 January 2008, the

appellant was absent. It was alleged that he was ill and could not

participate at his hearing. The chairperson was informed that in terms of

the court order dated 22 November 2007, she had to decide on the

appellant’s medical fitness to attend the hearing should it be contended that

his medical condition prevents him from attending his hearing. On this

occasion oral evidence of Prof. P P Oosthuizen and Dr E P Vorster was led

on behalf of the appellant as to his medical

condition.

[15] The matter was then adjourned to 14 January 2008. It was later

rescheduled to 16 January 2008 in order to allow Dr Teggin to re-examine

the appellant on 14 January 2008.

[16] On 16 January 2008, after hearing the medical evidence, the chairperson

requested a further medical report from an independent doctor of her own

choosing. The matter was initially postponed to 1 February 2008, but was

later rescheduled to 6 February 2008 as judgment in the first court

application which was argued before Nieuwoudt AJ on 31 January 2008 was

handed down on 5 February 2008.

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[17] In the said judgment Nieuwoudt AJ made the following orders:

17.1 the decision by the employer on 31 August 2007 to suspend the

appellant without remuneration is varied to the extent that the

continuation of the employer’s membership of Polmed and the funding

of the employer and employee contributions to Polmed are excluded

from the decision;

17.2 the employer is directed to continue to fund the employer and

employee contributions in respect of the employee to Polmed;

17.3 paragraphs 1 and 2 of the order ( the above paragraphs), shall

operate until the dispute referred to the SSSBC on 8 October 2007,

and resubmitted on 21 November 2007, was finally determined;

17.4 the appellant is directed to deliver a copy of this judgment to the

SSSBC with a request that the conciliation and, if that fails, the

arbitration of this dispute be expedited;

17.5 the employer was ordered to pay the appellant’s costs.

[18] It is common cause that the dispute that Nieuwoudt AJ referred to, related

to a referral challenging the employer’s suspension in terms of Regulation

13(2).

[19] The SAPS implemented Nieuwoudt AJ’s judgment on 6 February 2008;

effectively suspending the appellant without pay, subject to him receiving

his medical aid benefits. The reason why appellant was to be paid medical

aid benefits was because the court found that exceptional circumstances

existed that warranted him receiving this benefit, due to his medical

condition.

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[20] On 6 February 2008 the chairperson, after the hearing and considering all

the medical evidence placed before her, including that of Prof Niehaus, an

independent expert she had arranged, acting in terms of the court order

dated 22 November 2007 determined that despite the appellant’s medical

condition, his concentration and memory was not so impaired as to hinder

or restrict his participation in the hearing. She based her decision on inter

alia, the following grounds:

20.1 the appellant does indeed suffer from chronic PTSD and major

depressive disorder, which condition was confirmed by all the

examining doctors;

20.2 the appellant had been receiving ongoing medical treatment since

March 2007, which included correcting his medical regimen, and

providing psychotherapy counselling sessions;

20.3 he has been treated for a continuous period of 10 months;

20.4 Dr Teggin, who examined the appellant on 2 October 2007, 21

November 2007 and 14 January 2008, had noticed a marked

improvement in the appellant’s medical condition which he attributed

to the correction of his medication, coupled with psychotherapy

counselling, and the fact that the appellant had been on a new

medical regime at the time of his last consultation with Dr Teggin for

a period of approximately six weeks, which he estimated to be the

appropriate time period for the medication to work effectively;

20.5 Dr Teggin’s medical opinion is also consistent with the fact that the

appellant was able to provide his legal representatives, with detailed

accounts of dates, incidences, descriptions, names of persons that he

was involved with, descriptions of incidences that occurred during his

career to assist his defence and in his application application to court;

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20.6 Dr Teggin was of the opinion that appellant’s condition had

“plateaued” and that little further could be done in the way of

symptom improvement;

In light of the above, the chairperson ruled that, subject to the appellant

continuing with his medication, he would be fit to attend his disciplinary

hearing. She ruled that the disciplinary hearing was to continue.

[21] After 6 February 2008, the disciplinary hearing was rescheduled to continue

on 13 February 2008, with the appellant in attendance.

[22] On 12 February 2008, the appellant launched a second urgent application in

the Labour Court under Case No. C60/08 seeking to postpone the hearing

on 13 February 2008, pending the decision of the court to review and set

aside the chairperson’s decision declaring the appellant fit and capable to

attend his hearing and to prevent the hearing from continuing at all, or until

some independent third party determined that he was not fit or capable to

attend his hearing.

[23] It is this second application which was argued before Cheadle AJ on 12

February 2008. Cheadle AJ handed down his judgment ex tempore and

provided an edited and expanded version of his reasons on 14 February

2008. In short Cheadle AJ determined that the Labour Court did not have

jurisdiction based on section 157(1), read with section 185 to intervene in

incomplete disciplinary proceedings. He accordingly dismissed the

application with costs. It is this judgment that forms the subject matter of

this appeal.

[24] The hearing was then rescheduled to convene on 3 March 2008. The

appellant, perhaps accepting the decision of Cheadle AJ, launched a third

application in the Cape High Court under Case number 3499/08, seeking

the same relief as in the second application before Cheadle AJ in the Labour

Court. This application (3499/08) was argued on 6 March 2008 before NC

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Eramus J. The appellant’s application was dismissed with costs, the court

finding inter alia, that the High Court did not have jurisdiction to entertain

the appellant’s application. With this finding, the appellant had reached a

cul-de-suc.

[25] Reverting back to the proceedings in the Labour Court, the appellant

contended that the Labour Court had jurisdiction in terms of sec 157(2) of

the Labour Relations Act[4] to determine the application seeking an order

postponing the disciplinary hearing pending the outcome of an application

for review and setting aside the decision of the chairperson that the

appellant is fit to participate in the hearing. In bringing the application the

appellant relied on the appellant’s constitutional rights to human dignity,

fair labour practices, fair administrative action, access to healthcare

services, administrative justice, the right to have any dispute that can be

resolved by the application of law decided in a fair public hearing before an

independent and impartial tribunal or forum, as enshrined in sections 10,

11, 12(1)(d) and (e), 27(1)(a), 33, 34 or the Constitution of the Republic of

South Africa[5] and Promotion of Administrative Justice Act.[6]

[26] The respondents opposed the application collectively on the ground that,

inter alia:

26.1 the application is not urgent and is an abuse of the process of the

court as the disciplinary proceedings had already commenced at the

end of August 2007, and already postponed several times at the

request of the appellant due to his alleged medical condition;

26.2 at no stage since the commencement of the disciplinary inquiry has

the appellant raised any objection to the inquiry being held save that

he was not medically fit to attend the disciplinary inquiry;

26.3 at no stage up until this application has the chairperson been accused

of being biased against the appellant;

[4] Act 66 of 1995. [5] Act 108 of 1996. [6] Act 3 of 2000.

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26.4 the appellant has a number of alternative remedies available to him

such as (i) he has a right of appeal in the event of an adverse finding

against him; (ii) he has the right to refer his matter to arbitration in

the event of an unsuccessful appeal against an adverse finding; and

(iii) he may thereafter also seek to review the arbitrator’s decision in

the event that it upholds an adverse disciplinary or appeal decision

against him;

26.5 that the appellant’s rights, if any, relate to a right to a fair hearing

and that he has not shown that he will not receive a fair hearing. He

is legally represented notwithstanding that the regulations do not

permit it;

26.6 that the medical evidence relating to the appellant’s medical condition

is not necessarily relevant to the charges as they relate to informer

claims that were processed by the appellant recently.

[27] In the judgment the Labour Court recorded that it had taken the view “that

this case turns on whether the [appellant] has a right to review and

interdict the conduct of disciplinary proceedings” and the Labour Court’s

jurisdiction on the right to fair dismissal procedure under the Act; the

breach of the constitutional rights to dignity, fair labour practices and fair

administrative action; and the inherent power of the Labour Court to

remedy any injustice.

[28] The Labour Court made the following findings and conclusions:

28.1 Employees have the right to a fair procedure before they are

dismissed. Jurisdiction in respect of procedural fairness follows the

alleged reason therefore. Only the CCMA or a bargaining council had

jurisdiction to determine the procedural fairness of a dismissal for

reasons relating to conduct, and that in so far a sec 157(1) is

concerned, the Labour Court does not have the jurisdiction to

determine the fairness of a disciplinary hearing into misconduct,

barring the two exceptions that do not affect the thrust of the

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argument. That the right to challenge the fairness of the employer’s

decision to dismiss is a serious though constitutionally justified

interference with the freedom to contract and to manage its business;

that this statutory interference with the right to terminate a contract

is controversial and if there is to be protection of unfair dismissal the

impact thereof should be as light as possible; that judicial oversight

of the conduct of disciplinary proceedings while they are in process is

costly, time consuming, that intervention at this stage may prove to

be unnecessary; that the right not to be unfairly dismissed constitute

a careful balance between the interests of workers and employers and

seeks to give expression to the right to fair labour practices being fair

to both employees and employers, namely, “sufficient protection at

minimum costs;” that the Labour Court has no jurisdiction to review

and interdict the conduct of disciplinary proceeding on the ground of

the right to fair procedure under the Act.

28.2 The ambit of the constitutional right to fair administrative action does

not extend to employment decisions of a public sector employer, and

therefore, if there is no right to fair administrative action separate

from the right to fair labour practices, there can be no alleged or

threatened violation of the right to fair administrative action – a

requisite for jurisdiction under sec 157(2) of the Act.

28.3 The right to dignity is both a value and a right and it informs all the

fundamental rights in the Constitution. Since the primary

constitutional breach in this application is the right to fair labour

practices, there is therefore no independent right to dignity to violate

for the purposes of sec 157(2).

28.4 The right to fair labour practices is given effect to by the Act and

other labour legislation and that right plays no role and does not

constitute a separate source for a cause of action, apart from

challenges to the constitutionality or interpretation of that legislation

or the development of the common law where there is no legislation.

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28.5 The Labour Court has the inherent powers of the High Court but only

in relation to matters under its jurisdiction and its jurisdiction does

not include interfering with disciplinary hearings.

[29] The appellant is appealing mainly against the finding by the Labour Court

that it did not have jurisdiction to entertain the application and the reasons

for its finding.

[30] It is necessary to mention that while this matter was pending the

chairperson set the disciplinary hearing down for continuation on 2 June

2008. On this day the appellant’s attorney appeared on his behalf and

moved an application for the postponement of the hearing on the grounds

of appellant’s medical condition and that he was in hospital. The

chairperson refused a postponement. She further decided that the

appellant was to be suspended without remuneration in terms of the SAPS

Regulations. The SAPS as the employer invoked the provisions of

Regulation 18(5)(a) in terms whereof the appellant had sixty days within

which to make himself available for the enquiry to proceed failing which he

would be deemed to have been discharged from the service. Within the 60

days period the appellant’s attorney appeared before the chairperson and

presented a medical report indicating that the appellant was still sick and

requested that the decision to withhold his remuneration be withdrawn and

that he should not be dismissed. The request was refused and the

appellant was dismissed in terms of Regulation 18(5)(a)(ii) read with

Regulation 18(5)(b).

[31] An appeal against this decision was lodged internally. At the same time an

unfair dismissal dispute was referred to the SSSBC on 25 August 2008. The

internal appeal was ultimately successful with the effect that the appellant

had to be reinstated. The SAPS was dissatisfied with the ruling of the

appeal authority and instituted review proceedings against this decision in

the Labour Court. The fact of the matter is that the appellant remains

dismissed, and there are at least two pending proceedings in the Labour

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Court, namely, that lodged by the SAPS against his reinstatement and the

review application lodged by the appellant regarding his suspension without

emoluments on 2 June 2008.

[32] That being the case the relief sought by the appellant in this Court has

become moot. A finding in favour of the appellant will not have the effect

of the SAPS being obliged to proceed with the disciplinary enquiry because

the appellant is no longer its employee barring an unsuccessful application

for review pending in the Labour Court. The respondents have argued

that the issue that this Court is required to determine in so far as the

decision of the Labour Court regarding jurisdiction is concerned is not moot,

but only moot in relation to the other relief relating to reviewing the

decision of the Chairperson that the appellant is fit to participate in the

disciplinary enquiry. They have consequently urged the court not to make

any determination in that regard.

[33] In the view that I take of this matter the issue to be determined is whether

the court a quo was correct in holding that the Labour Court does not have

jurisdiction to intervene in disciplinary proceedings.

[34] The Labour Court is established in terms of sec 151 of the Act as a Superior

Court in relation to matters under its jurisdiction, equal to that which a

court of a provincial division of the [High Court] has in relation to the

matters under its jurisdiction. The jurisdiction of the Labour Courts is

provided in sec 157 of the Act. It reads thus:

“157 Jurisdiction of Labour Court

(1) Subject to the Constitution and section 173, and except where

this Act provides otherwise, the Labour Court has exclusive

jurisdiction in respect of all matters that elsewhere in terms of this

Act or in terms of any other law are to be determined by the Labour

Court.

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(2) The Labour Court has concurrent jurisdiction with the High

Court in respect of any alleged or threatened violation of any

fundamental right entrenched in Chapter 2 of the Constitution of the

Republic of South Africa, 1996, and arising from-

(a) employment and from labour relations;

(b) any dispute over the constitutionality of any executive or

administrative act or conduct, or any threatened executive or

administrative act or conduct, by the State in its capacity as an

employer; and

(c) the application of any law for the administration of which the

Minister is responsible.

(3) Any reference to the court in the Arbitration Act, 1965 (Act 42 of

1965), must be interpreted as referring to the Labour Court when an

arbitration is conducted under that Act in respect of any dispute that

may be referred to arbitration in terms of this Act.

(4) (a) The Labour Court may refuse to determine any dispute,

other than an appeal or review before the Court, if the Court is not

satisfied that an attempt has been made to resolve the dispute

through conciliation.

(b) A certificate issued by a commissioner or a council stating that a

dispute remains unresolved is sufficient proof that an attempt has

been made to resolve that dispute through conciliation.

(5) Except as provided in section 158 (2), the Labour Court does

not have jurisdiction to adjudicate an unresolved dispute if this Act

requires the dispute to be resolved through arbitration.

[35] The powers of the labour are provide in sec 158 of the Act. The relevant

powers for the purposes of this matter are contained in sec 158(1) which

provides that:-

“(1) The Labour Court may-

(a) make any appropriate order, including-

(i) the grant of urgent interim relief;

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(ii) an interdict;

(iii) an order directing the performance of any particular act which

order, when implemented, will remedy a wrong and give effect to the

primary objects of this Act;

(iv) a declaratory order;

(v) an award of compensation in any circumstances contemplated

in this Act;

(vi) an award of damages in any circumstances contemplated in this

Act; and

(vii) an order for costs;

(b) order compliance with any provision of this Act;

(c) make any arbitration award or any settlement agreement an

order of the Court;

(d) request the Commission to conduct an investigation to assist

the Court and to submit a report to the Court;

(e) determine a dispute between a registered trade union or

registered employers' organisation and any one of the members or

applicants for membership thereof, about any alleged non-compliance

with-

(i) the constitution of that trade union or employers' organisation

(as the case may be); or

(ii) section 26 (5) (b);

(f) subject to the provisions of this Act, condone the late filing of

any document with, or the late referral of any dispute to, the Court;

(g) subject to section 145, review the performance or purported

performance of any function provided for in this Act on any grounds

that are permissible in law;

(h) review any decision taken or any act performed by the State in

its capacity as employer, on such grounds as are permissible in law;

(i) hear and determine any appeal in terms of section 35 of the

Occupational Health and Safety Act, 1993 (Act 85 of 1993); and

(j) deal with all matters necessary or incidental to performing its

functions in terms of this Act or any other law.”

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[36] In addition to the provisions of the Act, Section 77(3) of Basic Conditions

of Employment Act[7] provides that:

“77 Jurisdiction of Labour Court

(1) Subject to the Constitution and the jurisdiction of the Labour Appeal

Court, and except where this Act provides otherwise, the Labour Court has

exclusive jurisdiction in respect of all matters in terms of this Act, except in

respect of an offence specified in sections 43, 44, 46, 48, 90 and 92.

(2) The Labour Court may review the performance or purported

performance of any function provided for in this Act or any act or omission

of any person in terms of this Act on any grounds that are permissible in

law.

(3) The Labour Court has concurrent jurisdiction with the civil courts to hear

and determine any matter concerning a contract of employment,

irrespective of whether any basic condition of employment constitutes a

term of that contract.

(4) Subsection (1) does not prevent any person relying upon a provision of

this Act to establish that a basic condition of employment constitutes a term

of a contract of employment in any proceedings in a civil court or an

arbitration held in terms of an agreement.

(5) If proceedings concerning any matter contemplated in terms of

subsection (1) are instituted in a court that does not have jurisdiction in

respect of that matter, that court may at any stage during proceedings

refer that matter to the Labour Court.”

[37] In Gcaba v Minister of Safety & Security[8] the Constitutional Court

noted that the specific term “jurisdiction” has been defined as the

“power” or competence of a Court to hear and determine an issue

[7] Act 75 of 1997. [8] 2010 (1) SA 238 at para 74 – 75; (2008) 29 ILJ 73 (CC); [2009] 12 BLLR 1145 (CC)

18

between parties.[9] The Court held that jurisdiction is determined on the

basis of the pleadings and not the substantive merits of the case and, in

the event of the courts’ jurisdiction being challenged at the outset (in

limine) the applicant’s pleadings are a determining factor. If the

pleadings, properly interpreted, establish that the applicant is asserting a

claim under the LRA, that has to be determined exclusively by the

Labour Court, the High Court would lack jurisdiction.

[38] In Chirwa V Transnet Ltd & others[10] Skweyiya J stated that the

existence of a “purpose-built” employment framework in the form of the

Act and associated legislation infers that labour processes and forums

should take precedence over “non-purpose-built” process and forums in

situations involving employment-related matters. The issue of the

jurisdiction of the Labour Court must therefore be considered bearing in

mind not only the legislation itself but with the pronouncements made by

the Constitutional Court and other binding precedent.

[39] The enquiry in matters of the nature under discussion is whether the

facts presented indicate whether the Labour Court has jurisdiction to

determine the dispute. If the answer to this question is in the

affirmative, the second enquiry should be whether an applicant has met

the requirements for the interdictory order.

[40] The Court a quo referred with approval to the decision of the Labour

Court in Moropane V Gilbeys Distillers and Vintners (Pty) Ltd &

Another.[11] In that case the applicant was suspended pending a

disciplinary inquiry into charges relating to incapacity and misconduct.

The applicant sought further particulars relating to the charges. A

hearing was convened before further particulars were, according to the

applicant, fully furnished. The applicant applied for a postponement of

[9] The Court noted further that it regularly has to decide whether it has jurisdiction over a matter and that if a litigant raises a constitutional issue the Constitutional Court has jurisdiction even through the issue may eventually be decided against the litigant. [10] [2008] 2 BLLR 97 (CC) at para (41); 2008 (4) SA 367 (CC) [11] [1997] 10 BLLR 1320 (LC); 1998 ILJ 635 (LC)

19

the proceedings for lack of an opportunity for proper representation and

for an order from the chairperson that he be furnished with further

particulars. The matter was allowed to stand down until the following

day. The applicant was dissatisfied with this and instituted an urgent

application in the Labour Court seeking, inter alia, an order directing the

employer to furnish further particulars, and that the employer should not

set the disciplinary enquiry down before the expiry of ten working days

after the date upon which the aforementioned further particulars have

been delivered to the applicant.

[41] The Labour Court, in Moropane, correctly in my view, observed that if

the court has the jurisdiction it would have the power to grant an

appropriate remedy and that because the Labour Court has the power to

grant the remedy, it does not mean that it has jurisdiction to determine

the matter. In conclusion the Labour Court held that an employee facing

dismissal for misconduct or incapacity does not enjoy an independent

right to procedural fairness which can be enforced by the Labour Court

prior to it resulting in an unfair dismissal, and that as the applicant

enjoys no such right the Labour Court has no jurisdiction to come to his

aid. The applicant’s application therefore failed.[12] The reason advanced

by the Labour Court that an employee’s right to a fair pre-dismissal

hearing could not be vindicated before he was actually dismissed, was

that the Act provides an exclusive remedy for breach of a fair procedure,

being compensation or reinstatement or re-employment.

[42] It is important to mention that the Labour Court in Maropane recorded

that the court was “asked to enforce the right to a fair procedure and to

do so immediately as redress by the CCMA in the form of arbitration will

not cure the procedural deficiency for the respondent’s disciplinary

committee and as grave injustice would follow if the Court does not

intervene at this stage”.[13] The Labour Court then found that adequate

[12] at 1326G-H. [13] at 1322G-H.

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remedies were available to the employee for breach of a fair procedure

and that the employee had not succeeded to establish that he has a

prima facie right to the relief sought. An entitlement to a prima facie

right is one of the essential requirements for an interdictory relief. That

means Moropane failed because he could not establish that he was

entitled to the order he sought. I therefore do not understand this case

to mean that the Labour Court does not at all have jurisdiction to

determine whether to grant an interdictory orders in incomplete

disciplinary proceedings under all circumstances. Should my

understanding of the decision be wrong, and that it should be

understood to mean the opposite, then in that case Morapane should

not be followed.

[43] The next case that was considered by the court a quo is Mantzaris v

University of Durban-Westville & others.[14] In that case the

employee instituted review proceedings against the constitution of the

disciplinary panel. Subsequent to that the employee brought an urgent

application for an order inter alia, to have the disciplinary proceedings

halted pending the outcome of the review proceedings. The Labour

Court held that the application for review brought by Mantzaris was not

brought in terms of sec 145 of the Act and could only be brought in

terms of sec 158 (1) (g) of the Act. Section 158 (1) (g) as shown below

deals with the powers of the Labour Court, subject to sec 145, review

the performance or purported performance of any function provided for

in the Act on any grounds that are permissible in law. It does not

extend to matters not under its jurisdiction.

[44] In Mantzaris the Labour Court held that the conduct of a disciplinary

enquiry does not constitute an act or omission of any person or anybody

instituted in terms of the Act; that only reference to disciplinary

proceeding is in the Code of Good Practice which is nothing more than a

guideline in dismissal matters. The Court then held that it lacked

[14] [2000] 10 BLLR 1302 (LC); (2000) 21 ILJ 1818 (LC)

21

jurisdiction to review internal disciplinary proceedings. It however held

that it had jurisdiction to interdict incomplete disciplinary proceedings

and that the Labour Court can only do so in the most exceptional of

circumstances, where a grave injustice or a miscarriage of justice might

otherwise occur, or where justice might not by other means be

attained.[15]

[45] It would appear that it is only the court a quo that has found that the

Labour Court lacks jurisdiction to grant relief in matters that are not

specifically assigned to it in terms of sec 157 and those that would be

referred to conciliation mediation and arbitration under the Act. The

effect of the findings of the court a quo is that the Labour Court lacks

jurisdiction to interdict disciplinary proceedings because the legislature

has provided detailed procedures and mechanisms for employees to

vindicate their fair pre-dismissal procedural rights only after they have

been dismissed. This conclusion suggests or rather means that the

Labour Court cannot come to the assistance of such an employee before

his or her dismissal. It means that unless there is a dismissal there is no

remedy. It further means that ex post facto relief should determine

jurisdiction.

[46] By implication the court a quo’s reasoning is that employees who have

genuine complaints of other unfair labour practices such as unfair

demotions, failure to promote or suspensions for which the Act has

provided specific remedies through arbitration and not the Labour Court,

cannot approach the Labour Court for interdictory relief. I doubt the

correctness of such an interpretation because it has the potential of

leading to absurdity situations. There are many instances where the

Labour Court has deemed it necessary to intervene in deserving

situstions.[16]

[15] at para 5.7. [16]

See generally: Numsa & Others v Comark Holding (Pty) Limited [1997] 5 BLLR 589 (LC). Afrox Ltd v SAWU & Ohters; SACWU & Others v Afrox Ltd [1997] 4 BLLR 382 (LC); NUM v Elandsfontien Colliery (Pty) Ltd [1999] 12 BLLR 1330 (LC); Ndlovu v Transnet limited [1997] 7 BLLR (LC); SAMWU v City of Cape Town [2008] 29ILJ 1978 (LC).

22

[47] This Court in Nxele v Chief Commissioner, Corporate Services,

Department of Correctional Services & others [17] had to consider

an appeal emanating from an application brought on an urgent basis for

an order restraining the department of correctional services from

transferring Nxele from one centre to the other. His application was

dismissed by the Labour Court on the basis that he did not satisfy the

requirements for the order on the merits. On appeal this Court

recognised that the Act imposes a general obligation on employers to

treat their employees fairly and that the transfer of Nxele if done

unfairly would breach that general duty. The decision to transfer Nxele

was found to be unfair in the manner in which the department

implemented it and was set aside. This Court did not find that the Labour

Court did not have the necessary jurisdiction to entertain the application

brought by Nxele because transfers are not specifically mentioned in sec

157(1) of the Act. The approach adopted by this court in Nxele

strengthens the conclusion that the Labour Court may in the exercise of

the powers provided in section 158 (1) interdict any condudt by the

employer that is found to be unfair.[18]

[48] As pointed out above section 157 of the Act should be interpreted in line

with the intention of the legislature as well as the purpose of the Act. It

must also be interpreted in line with what was said by the majority of

the Court in Chirwa, that the intention of the Act is to subject all

disputes concerning the alleged unfair dismissal of employees and unfair

labour practices to the one-stop dispute resolution mechanism provided

by the Act which are staffed by women and men who have experience

and knowledge of labour and employment related issues. This could be

[17 ] [2008] 12 BLLR 1179 (LAC); [18 ] See also: MEC for Finance, kwaZulu-Natal & Another [2008] 6 BLLR 540 (LAC) in

which this Court held that the Labour Court is empowered to review internal disciplinary proceedings at the instance of the employer especially where the employer is the State.

23

one of the reasons why employment related matters were taken out of

the jurisdiction of the High Court.[19]

[49] In my view, sec 157 must also be interpreted as a whole to fully

understand the intention of the legislature. The majority in Chirwa held

further that the concurrent jurisdiction provided for in sec 157 (2) of the

Act is meant to extend the jurisdiction of the Labour Court to

employment matters that implicate constitutional rights.[20] The

implication of this finding is that sec 157 (2) must be interpreted to have

given the Labour Court powers equal to that of the High Court when it

comes to employment and labour matters, and not to preserve the High

Court’s jurisdiction over disputes arising from employment and labour

relations and over the constitutionality of administrative act or conduct

by the state in its capacity as employer,.[21] The following remarks by

the author are persuasive[22]

“The Chirwa majority did not venture to suggest how its interpretation

of section 157(2) impacted on section 158(g), or to elaborate on the

purpose the latter provision may serve if it does not mean what it say

– that the Labour Court may review any decision taken or any act

performed by the State in its capacity as employer. In the face of

that unambiguous and expansive language, it is difficult to fathom

why disciplinary action should be excluded, and, if it must, on what

grounds. Nor did Chirwa court deal with the scope of the various

powers listed in section 158(2)(a). But it is equally difficult to fathom

why, if the Labour Court has exclusive jurisdiction over labour and

employment disputes, it should not enjoy the same powers in that

sphere as were previously exercised by the High Court – including the

[19] This position was confirmed in the Gcaba decision n (footnote at page 257). See also para 105 of Ngcobo J’s judgment. [20] para 54. [21] See the entire article by John Grogan in Employment Law Volume 25 part 1 Lexis Nexis. [22] at page 10 of the Article.

24

power to interdict unlawful or unfair disciplinary proceedings in

appropriate cases”.(my emphasis).

[50] Failure by the Labour Court to exercise jurisdiction over disciplinary

proceedings, which are in fact conducted pursuant to the employment

relationship would mean that the employee must approach the High

Court to decide a matter which might in future serve before the Labour

Court as part for example, of a review application. At that stage the

Labour Court may be constrained to consider whether the decision of the

High Court was correct or wrong in determining perhaps the fairness or

otherwise of the dismissal. To allow such to happen would in my view

not be in line with the spirit of the Act and the decisions of the

Constitutional Court referred to above.

[51] The court a quo held that the judicial oversight of the conduct of

disciplinary proceedings while they are in process is costly, time

consuming, disruptive and duplication of proceedings. That may well be

so. However, judicial intervention may prove to be time saving, and less

costly if the process is not proceeded with. It may also prevent costly

litigation. The very fact that the Labour Court has the power to issue

interdictory relief suggests that the legislature was aware that the

exercise of such power might interfere with the freedom of employer’s to

contract and the employer’s business in deserving cases.

[52] Commenting on the reasoning of the court a quo, Gauntlett AJ in

Nimrod Llewellyn Mortiment v Municipality of Stellenbesch and

another[23] had the following to say:

“In his reasons, Cheadle AJ stresses the lack of an inherent jurisdiction in

the Labour Court as creature of statute (in contradistinction to the High

Court). Following Maropane v Gilbrey Distillers and Vintners (Pty)

Ltd he holds that the Labour court “does not have an all-embracing

jurisdiction over the employer-employee relationship.

[23] An unreported judgment of WCD (Case No 18243/2008).

25

As already indicated that has to be accepted as a truism --. But with

respect, that is not the point. It does not address the fact that unfairness in

the dismissal process is a “matter” which the LRA clearly regulates.”[24]

[53] The learned acting Judge continued further thus:

“Where a person in truly extraordinary circumstances – a matter to which I

revert in considering the third issue-approaches the Labour Court on the

basis that a disciplinary inquiry was for instance, about to commence or

was conducted in the hands of a biased or unqualified presiding officer, or

on another factual basis so serious as to vitiate in Law the enquiry, I have

little doubt that the labour court would in law exercise these powers to stop

it.”

[54] To answer the question that was before the court a quo, the Labour

Court has jurisdiction to interdict any unfair conduct including

disciplinary action. However such an intervention should be exercised in

exceptional cases. It is not appropriate to set out the test. It should be

left to the discretion of the Labour Court to exercise such powers having

regard to the facts of each case. Among the factors to be considered

would in my view be whether failure to intervene would lead to grave

injustice or whether justice might be attained by other means. [25] The

list is not exhaustive.

[55] In the light of my finding above and the pending disputes in the Labour

Court, it is not, in my view appropriate to decide the merits of the case.

The said merits were also not considered by the Labour Court. It is

remarkable that this matter has travelled this far without the actual

dispute relating to misconduct being part of the proceedings. But for the

developments in this matter, we would not have hesitated to deal with

the merits of the matter. This is a case where it would be in accordance

[24] See Nomgcobo Jiba v Minister of Justice & Constitutional Development & 16 Others, Case No J167/09 Labour Curt Johannesburg (unreported) at para 8 and 9. [25] Wahlhaus and Others v Additional Magistrate, Johannesburg and Another 1959(3) SA 133 (AD).

26

with the requirements of the law and fairness that each party must pay

its costs.

ORDER

(1). The order of the court a quo is set aside. The following order is

made:

(a) The Labour Court does have jurisdiction to grant appropriate relief

in relation to pending disciplinary hearings.

(2) The matter is remitted to the Labour Court, so that the outstanding

issues, if need be, can be dealt with.

(3) There is no order as to costs

________________________

TLALETSI JA

I agree

________________________

WAGLAY DJP

I agree

________________________

MUSI AJA

27

Appearances:

For the appellant: Robert Stelzner SC

Instructed by: Edward Booth Attorneys

For the Respondent: Norman Arendse SC; Brenton Joseph

Instructed by: State Attorneys Cape Town

Date of judgement: 1 October 2010